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<br />applications] in order to protect against arbitrary state action <br />in violation of the right to due process of law"). Such judicial <br />and constitutional requirements cannot be circumvented by the <br />creation of standards which the agency is free to ignore. See <br />also Oil Shale Corp. v. Morton, 370 F. Supp. 108, 123-124 (D. <br />Colo. 1973) (the basic notion of procedural due process requires <br />"government officials to follow the law as it exists until that <br />law is changed, and to notify individuals in the change in law <br />before it is applied against them to their detriment"). Any <br />action by the Board which disregards MLRD rules and statutory <br />authority would be arbitrary, capricious, and outside its <br />statutory jurisdiction. <br />The Board has already heard evidence concerning Battle <br />Mountain's prior conduct in the course of its exploratory <br />phase. At that time, when Battle Mountain determined that it <br />needed water, it backed up trucks to the Rito Seco and filled <br />them, without authority or regard for governing laws. Ass a <br />result, it was reprimanded by the State Engineer's Office. Based <br />on such prior conduct and its present lack of water rights for <br />its operation, it is not unreasonable to question whether Battle <br />Mountain will again disregard controlling law in order to obtain <br />water necessary for its mining operation. <br />Battle Mountain's application not only puts they cart <br />before the horse; granting the permit would result in ar. <br />-5- <br />